The Appellant submitted that the Case Management Judge erred in failing to consider the scope of relevant evidence for the Security for Costs Application (the “Security for Costs Application”) with respect to Rule 4.22(c). The Appeal was ultimately dismissed on all grounds.

The Court of Appeal noted that a cross examination on an Affidavit in support of an Application seeking Security for Costs is not meant to determine the merits of the underlying Action and is limited in what information may be sought and what questions may be answered.

The Court of Appeal found that the Case Management Judge did not err in his statement or application of the law with respect to relevance for a Security for Costs Application. The Court noted that the Case Management Judge’s assessment of relevance regarding his refusal to order answers to undertakings and production of records was appropriate because they were not relevant to the Security for Costs Application. More specifically, the Court noted that this was a discretionary Decision entitled to deference which would not be interfered with absent an error in principle or unless clearly unreasonable. The Court additionally found that it was noteworthy that many of the records sought by the Appellant had been produced. The Court determined that the Appellant’s assertions that the Respondents had not produced all relevant and producible records was not relevant to the Security for Costs Application.

The Court of Appeal also noted that determining the relative merits of the Action is not the primary issue on a Security for Costs Application. The Court acknowledged that even if there were errors in the factors applied by the Case Management Judge, the Appellant had not demonstrated that the Case Management Judge had erred in evaluating the Appellant’s likelihood of success in the Action as weak in assessing the merits of the Security for Costs Application.